Mandatory Retirement to be Eliminated in Parliament

[Brick Head]

A contract may not contravene the law and the ruling last August renders that part of our contract, well...illegal.

Rockie,

A CHR Tribunal can not change the law in and of themselves. In fact they are bound to uphold the CHRA in its entirety. They can, and have, set in motion a process to effect change to the law but that is it.

AC nor ACPA are doing anything illegal until the law is amended. All that has happened so far is that a CHR Tribunal thinks the exception for mandatory retirement within the CHRA contravenes the charter. That has set in motion the process for a possible eventual law change.

Remember we didn't introduce the Charter issue.

[Rockie]

That's not the way I read the conclusions. The HRTC says it will not apply 15(1)(c) because the respondents (ACPA and AC) have not proven that it applies. And they also rule that age 60 is not a BFOR under 15(1)(a) and 15(2) of the CHRA.

[155] The Tribunal has concluded that the respondents have not met their onus under s. 1 of the
Charter. Section 15(1)(c) of the CHRA is not a reasonable limit on the complainants’ rights under
s. 15(1) of the Charter. Therefore, we refuse to apply s. 15(1)(c) to the facts of this case.

[156] The Tribunal has also concluded that the respondents have not established that the
mandatory retirement provision in the collective agreement is a BFOR within ss. 15(1)(a) and
15(2) of the CHRA.

[157] For these reasons the Tribunal finds that the complaints of Mr. Vilven and Mr. Kelly have
been substantiated.

They make no judgement on the provisions of the CHRA at all, in fact they judge the case purely on the merits of those provisions and have rendered a decision based on them. The parliamentary legislation to change the law has nothing to do with the CHRT's decision or judgement in this case.

However, both the company and union are obviously in line with your thinking, so I guess we'll have to wait and see how this all sifts out.

[Brick Head]

Rockie,

Close but not quite.

The Tribunal is saying that Section 15(1)(c) (the exception allowing mandatory retirement) of the CHRA is not a reasonable limit on the complainants’ rights under the Charter because there are other alternatives for protecting deferred compensation. Meaning not that the exception violates the charter. Rather why apply the exception when other means, that do not infringe on a protected right, can be used to accomplish the same thing. On those grounds the CHT refused to apply section 15(1)(c). However by refusing to apply the CHRA as written, the Tribunal is attempting to change the way the CHRA is applied to federal worker wrt to mandatory retirement. They are attempting to strike Section 15(1)(c) (the exception that allows mandatory retirement) from the CHRA on the grounds that it is no longer a reasonable limit under the charter. They are in effect attempting to change/reinterpret the CHRA. We may very well be watching the evolution of the CHRA wrt to mandatory retirement.

But like I said. It takes time

[Rockie]

One thing we can both be thankful for is that neither one of us is a lawyer.

The case was initially won by ACPA and Air Canada, but was referred back by federal court conducted judicial review because of an error in what constitutes "normal age of retirement". The federal court also found that section 15(1)(c) contravenes the charter and sent it back to the tribunal to, well...here's what they said:

[8] On the constitutionally of s. 15(1)(c), the Court disagreed with the Tribunal, finding that
this provision contravenes s. 15 of the Charter and remitted the complaint to the Tribunal to
determine, on the basis of the existing record, whether s. 15(1)(c) of the CHRA can be
demonstrably justified as a reasonable limit in a free and democratic society within the meaning
of the s. 1 of the Charter.

In determining whether 15(1)(c) can be justified the tribunal turned to the Supreme Court of Canada for guidance, and filled 11 pages with discussion and back and forth argument.

[11] To be saved under s. 1 of the Charter, the onus is on the respondents to establish that
s. 15(1)(c) is a “reasonable limit prescribed by law as can be demonstrably justified in a free and
democratic society.” The test for determining this was articulated by the Supreme Court of
Canada in R. v. Oakes, [1986] 1 S.C.R. 103.

In the end they ruled that the respondents (AC and ACPA) failed to prove that 15(1)(c) was justified in this case. They actually used those words "in this case" in their conclusion, and I don't think that was an accident. I think they dodged the larger question of whether or not it violates the charter and judged this case against 15(1)(c) because they had to, it's still part of the charter. Their ruling states AC and ACPA did not live up to their onus to prove 15(1)(c) was justified in this case which is totally within their purview. The conclusion says nothing about 15(1)(c) being a violation of the charter.

But ACPA and AC can easily recruit a legion of lawyers who disagree with me, just as Vilven and Kelly can sign up legions of lawyers who agree with them. We each have our opinions that can be supported by any lawyer we care to hire, but we and the lawyers don't make the decision. As you say we'll just have to wait to see who prevails.

My concern is ACPA's tendency to fight cases long after they've been lost. This time around there are more than just lawyer fees and the status quo at stake.

[Brick Head]

Rockie,

This is the section of the CHRA that they believe is no longer a reasonable limit on the charter.

15(1)(c) Mandatory retirement is not a discriminatory practice when a person has reached the normal retirement age for employees performing the same type of work.

Yes the tribunal states that the respondents failed, in this case, to prove that mandatory retirement is a reasonable limit on the charter. But why is the key here. The logic behind why renders section 15(1)(C) obsolete and is a complete reinterpretation of its application. This exception had a single purpose within the CHRA. To protect a unions ability to end load a specific age (deferred compensation) for the purposes of pension benefit. The benefit of a larger pension, for decades now, has been seen as a reasonable trade off with the charter. What the Tribunal just did was reinterpret and separate the two by saying that Mandatory retirement is not a prerequisite for end loading a specific age with compensation. The Tribunal pointed out there is nothing stopping the respondents from end loading a specific age even if people stay beyond that age. They gave an example of professors in Ontario who work under different collective agreement rules after a certain age. Therefor mandatory retirement is not a reasonable limit on the Charter.

So although the Tribunal speaks of the case before them, (this case) the end result and logic eradicates the purpose for 15(1)(C) existence. Hence they are reinterpreting/rewriting the CHRA from what the architects of the CHRA wrote.

FWIW I agree with the logic. If unions can still end load a specific age for the purposes of pension benefit, even if people stay beyond that age, then mandatory retirement is no longer required to continue with a deferred compensation system. In my opinion it provides a way to stop mandatory retirement and at the same time protect all those that follow.

But remember we are being used to set public policy here. The big question of course is IF they can still end load a specific age and have individuals work under separate rules post that age. If this concept turns out to be false, then the CHRT logic for not applying 15(1)(C) gets thrown out the window.

As you can see, as we dig deeper and deeper, we are getting a better picture of just what a can of worms was opened when the charter question was asked.

[Max111]

Hi BricK Head,

Unless I'm missing something here.....Section 15.1 (c) is not part of the Charter ...It is part of The Human Rights Act and the Human Rights Act is a lot easier to change then the Charter....which in very difficult. There is a private members bill before Parliament to remove 15.1 (c) from the CHRA..........I believe this makes a HUGE difference.

[Max111]

FYI,
Parliament was about to repeat 15.1(c) of the CHRA in the 80's or early 90's but before it was repealed, an election was called and it died on the order paper. Now it's a private members Bill, which i understand has all party support.

[Brick Head]

Hi BricK Head,

Unless I'm missing something here.....Section 15.1 (c) is not part of the Charter ...It is part of The Human Rights Act and the Human Rights Act is a lot easier to change then the Charter....which in very difficult. There is a private members bill before Parliament to remove 15.1 (c) from the CHRA..........I believe this makes a HUGE difference.

Yup,

Correct on both counts. Change can be immediate if the law makers choose to make it happen. We all know though that politicians have a habit of letting the courts decide hot button issues. Check how many pages this thread is. The private members bill just eradicates section 15(1)(C) and does nothing to address the benefit of deferred compensation and the pension benefit derived from that. There is a reason the bill hasn't been adopted by a party.

But you are correct. The law makers could decide tomorrow that they no longer want to protect deferred compensation systems and just eradicate section 15(1)(C) of the CHRA. But my money isn't on it.

The point I am making is the CHRT must follow the CHRA, as written, until such time is it is amended. They have refused to apply section 15 (1)(C) of the CHRA (for decades considered a reasonable limit on the Charter) on the grounds that the deferred compensation system can be protected by other means.

Logically if it can be protected by other means then mandatory retirement is no longer a reasonable limit on the charter.

Interesting concept. But it is a total change in direction.

[Brick Head]

FYI,
Now it's a private members Bill, which i understand has all party support.

Really? Is it party support, or individual members within each party supporting it?

You never know. You are correct, if section 15(1)(C) is repealed, over night mandatory retirement will become illegal. Period. Overnight the only thing that protected deferred compensation, and the pension benefit derived from it, gone as well.

You really think that is the public policy the law makers want? Or will they just let the courts sort out the balance?

[Rockie]

So although the Tribunal speaks of the case before them, (this case) the end result and logic eradicates the purpose for 15(1)(C) existence.

The end result as you state may be the case and probably is, but what you've just stated is your opinion in your words, and it does not appear anywhere in the conclusions made by the HRTC. The HRTC only ruled that it cannot be proven justifiable in this case.

In any event, back to my original point about this ruling. If ACPA and AC are ruled against in this next JR then the HRTC ruling stands and is applicable from August 28th, 2009. Then there will be a mess to clean up.

[Brick Head]

So although the Tribunal speaks of the case before them, (this case) the end result and logic eradicates the purpose for 15(1)(C) existence.

The end result as you state may be the case and probably is, but what you've just stated is your opinion in your words, and it does not appear anywhere in the conclusions made by the HRTC.

Rockie,

I hope you are reading the supporting evidence used to come to the conclusion and not just the conclusion in isolation



[28] Furthermore, there is expert evidence in this case that questions the concerns that the
Court raised in McKinney with regard to the negative effects of abolishing mandatory retirement.

[29] Dr. Jonathan Kessselman, a labour economist at Simon Fraser University in the graduate
program of Public Policy, testified that the abolition of mandatory retirement has not spelled the end of deferred compensation systems and all of the benefits such systems bring to the labour market.

[30] Deferred compensation is the practice of paying workers less than their productivity in
earlier years and more than their productivity in later years. In addition, most deferred
compensation systems, like that of Air Canada, provide deferred benefits such as pensions and
post-retirement benefits that rise with the worker’s tenure.

[31] Both employers and employees like the deferred compensation system. It permits wages
to rise with age, promotes employee loyalty in the expectation of rich pension benefits and
encourages employers to invest in worker training. In exchange for the deferred benefits,
employees may agree to terminate their employment at a specific age.

[34] Professor Carmichael, a labour economist from Queen’s University, agreed that in
jurisdictions where mandatory retirement has been abolished deferred compensation, seniority
and other positive features of the current labour regime have continued. And there are alternatives to mandatory retirement that have the effect of preserving the benefits of the current system.

[35] One such alternative is to provide a lump sum payment to employees upon retirement at a certain age to induce them to retire. He pointed out that this approach was introduced in Quebec universities when mandatory retirement was abolished in that province.

[36] Another alternative is to permit workplace parties to renegotiate the terms and conditions of employment at an agreed upon age. He stated that this has been successfully done in some Ontario universities where professors who reach a certain age agree to stay on as professors emeritus.

[45] In the light of the above-noted considerations, can it be said that the goal of permitting mandatory retirement to be negotiated in the workplace continues to be of pressing and substantial importance? The alternatives to mandatory retirement, which are in use in other
jurisdictions, effectively preserve the benefits of the current system without infringing a
constitutionally protected right. How then can the goal of permitting freedom of contract in this
area be sufficiently important to warrant overriding a constitutional right?

[Rockie]

Rockie,

I hope you are reading the evidence used to come to the conclusion and not just the conclusion.

Yes I have, and it does make for an interesting read if you happen to be taking a sociology course in school. Calling it evidence though is a misnomer I think. It's 11 pages of "discussion" using information from different sources. They do discuss the sociological implications of mandatory retirement but again, the conclusions leave that aspect out of it and they restrict their language to the case at hand.

Have the respondents met their onus wrt 15(1)c)? The answer was no.

[Brick Head]

Have the respondents met their onus wrt 15(1)c)? The answer was no.

That's right. Because...........

[45] In the light of the above-noted considerations, can it be said that the goal of permitting mandatory retirement to be negotiated in the workplace continues to be of pressing and substantial importance? The alternatives to mandatory retirement, which are in use in other
jurisdictions, effectively preserve the benefits of the current system without infringing a
constitutionally protected right. How then can the goal of permitting freedom of contract in this area be sufficiently important to warrant overriding a constitutional right?

I can't argue with this logic. Can you? If there is an alternative that does not infringe on a constitutionally protected right why impose the one that does?

Calling it evidence though is a misnomer I think. It's 11 pages of "discussion" using information from different sources. They do discuss the sociological implications of mandatory retirement but again, the conclusions leave that aspect out of it and they restrict their language to the case at hand.

Yup that's why, out of the mountain of evidence presented, over weeks and weeks, this evidence was used to precursor their conclusion. It is just an irrelevant discussion on sociology. It has nothing to do with rationalizing their conclusions.

[Max111]

Brick Head,

Could you direct me to where in the Charter, they talk about mandatory retirement ! Your quote states......."the exception for mandatory retirement within the charter contravenes the charter."

Here is Section 15 of the Charter:

Equality Rights
Equality before and under law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.(84)



Max111

[Rockie]

Yup that's why, out of the mountain of evidence presented, over weeks and weeks, this evidence was used to precursor their conclusion. It is just an irrelevant discussion on sociology. It has nothing to do with rationalizing their conclusions.

I never said that. Of course it did. But they were very careful in the wording of their conclusions, and just because given that rationalization they ruled as they did in this case, that doesn't mean they wouldn't rule the other way in a different case. They never excluded the possibility because they made no conclusion on the overall validity of 15(1)(c) except as it pertains to this case.

Those are their words...not mine.

[Brick Head]

Brick Head,

Could you direct me to where in the Charter, they talk about mandatory retirement ! Your quote states......."the exception for mandatory retirement within the charter contravenes the charter."

Max 111,

Me bad. Thanks for the correction.

Should have read "the exception for mandatory retirement within the CHRA contravenes the charter."

Sorry for the confusion.

Edited later

Multiple corrections made to the above wrt to substituting Charter for CHRA.

thanks again max111

[Brick Head]

Yup that's why, out of the mountain of evidence presented, over weeks and weeks, this evidence was used to precursor their conclusion. It is just an irrelevant discussion on sociology. It has nothing to do with rationalizing their conclusions.

I never said that. Of course it did. But they were very careful in the wording of their conclusions, and just because given that rationalization they ruled as they did in this case, that doesn't mean they wouldn't rule the other way in a different case. They never excluded the possibility because they made no conclusion on the overall validity of 15(1)(c) except as it pertains to this case.

Those are their words...not mine.

Rockie,

You are in denial. You are doing exactly the same thing as those on the ACPA side that refuse to except that a retirement age other than 60 is in the offing.

The document has to be read as a whole. Each and every paragraph was chosen for a reason. Failing to read the document as a whole leads to erroneous conclusions regarding what the Tribunal is saying.

Those that just read the conclusion, of which I realize you are not one, are the guiltiest.

The last comment is mostly directed at my side.

[Rockie]

Brickhead

You and I are pretty stubborn and I think we would be dangerous in the same airplane together. How about we wait and see what transpires?

[Brick Head]

Brickhead

You and I are pretty stubborn and I think we would be dangerous in the same airplane together

[Jaques Strappe]

EL COMAT Wrote:

First of all, I just want to say that I DO NOT support staying past the age which, when you signed up, was the mandatory retirement age. Much like you old farts tell the junior guys "well, you knew the pay when you came here!" (as they sit in their left seat that was vacated by someone at age 60), I say "you knew the retirement age when you came here!"

That statement is bang on and should be in the Oxford Dictionary under "Hypocrisy"


Personally, if the "fly till ya die" camp insists they are not a bunch of greedy bastards, then I am sure they would be open to negotiating a term whereby if they remain to fly to 65, a portion of their salary will be diverted to supplement the dismal starting salaries people will be required to remain with longer, as a result of this campaign.

Yeah........I thought not. Bunch of greedy bastards.

[Rockie]

That statement is bang on and should be in the Oxford Dictionary under "Hypocrisy"

Hypocrisy could also be used to describe accusations of greed from people who are inflicted with it as well.

Personally, if the "fly till ya die" camp insists they are not a bunch of greedy bastards, then I am sure they would be open to negotiating a term whereby if they remain to fly to 65, a portion of their salary will be diverted to supplement the dismal starting salaries people will be required to remain with longer, as a result of this campaign.

Why don't you ask them? Of course that would entail reducing the wide disparity between the bottom and top people on the list which is the "deferred compensation" scheme much talked about here. I know I wouldn't be against it (even though you haven't asked me yet).

Yeah........I thought not. Bunch of greedy bastards.

See my first comment.

[Brick Head]

Rockie,

Once again your take on the situation is in conflict with CHRT thinking. Paragraph 37 is in the decision for a reason. No it can not be read in isolation either. But read within the "whole" of the document, it backs up the logic that there is a need to find an alternative method for protecting deferred compensation, if 15(1)(C) is not applied.


[37] However, Professor Carmichael does not necessarily subscribe to these alternatives. The
abolition of mandatory retirement would allow the current generation of older workers to keep all of the benefits of a deferred compensation system and avoid the responsibility that comes with those benefits – passing them on when their time to retire comes.

Ask yourself. These are not the words Professor Carmichael used. They are a summary of them by the Tribunal. Read as whole why is this paragraph in the document?

Clearly even the Tribunal recognizes there is a responsibility to retire on time under a deferred compensation system. But, later (Par 45) they go on to determine that retirement is not necessary to accomplish - passing them on when their time to retire comes. The benefits of a deferred compensation system can be preserved by alternative means than retirement.

[Rockie]

Once again your take on the situation is in conflict with CHRT thinking. Paragraph 37 is in the decision for a reason. No it can not be read in isolation either. But read within the "whole" of the document, it backs up the logic that there is a need to find an alternative method for protecting deferred compensation, if 15(1)(C) is not applied.

Professor Kesselman, who was quoted in the paragraphs before this one, disagrees. Also paraphrased by the tribunal.

[32] Professor Kesselman explained that, even accepting that deferred compensation systems
have important benefits to labour and management, it is not essential that there be a mandatory
retirement age. This is because most workers will not stay indefinitely in their employment.
Unconstrained by a mandatory retirement policy, they still choose to retire at around age 62. This
permits employers to provide a deferred compensation system and to plan and manage their
financial obligations - particularly in the area of pension plans and other benefits - without the
need for mandatory retirement.

[33] Professor Kesselman also testified that even without mandatory retirement, employers
continue to invest in their workers. There is no evidence of costly new systems to monitor the
performance of older workers to catch those who wish to stay on too long. Similarly, there is no
evidence that the removal of mandatory retirement has had any effect on the seniority system.


At rough count there are these two professors that provided expert testimony that differed from each other. There were also at least 6-7 court cases referenced inluding the Supreme Court of Canada with evolving rulings in recognition of societies changing opinion on mandatory retirement.

All of these things the HRTC considered when rendering their decision which you would expect from a body ruling on a subject as complex as this, but none were the silver bullet. Paragraph 37 is just one paragraph out of many.

Besides, I was responding to Jaques "greed" accusations and belief that those "greedy bastards" would not agree to shifting some of that money downward. I would. And if he asked some of the 60+ guys they might too. But if the majority wanted to keep the distribution the way it is now that's fine as well. How we distribute the money is entirely up to us as long as it's not discriminatory, or we'll find ourselves right back in front of the HRTC.

[Brick Head]

At rough count there are these two professors that provided expert testimony that differed from each other.

Paragraph 37 is just one paragraph out of many.

Exactly. Read it as a whole. At the end of the expert witness testimony we get this from the Tribunal in their own words. They are the thought process if you will. Considerations wrt the relevance of the testimony and the question at hand.

[45] In the light of the above-noted considerations, can it be said that the goal of permitting mandatory retirement to be negotiated in the workplace continues to be of pressing and substantial importance? The alternatives to mandatory retirement, which are in use in other jurisdictions, effectively preserve the benefits of the current system without infringing a
constitutionally protected right. How then can the goal of permitting freedom of contract in this area be sufficiently important to warrant overriding a constitutional right?

Besides, I was responding to Jaques "greed" accusations and belief that those "greedy bastards" would not agree to shifting some of that money downward. I would.

I understand you would and others might too. But you are missing the point. Agreement is not required from the complainants. The complainants have no right to continue in a deferred compensation system beyond the agreed age, of passing the benefit on.

In the absence of mandatory retirement, what is required, is ensuring the responsibility each and everyone of us has to pass the benefit on, at a specific age, is retained.

Let me be clear. In the CHRT own words. The logic for not applying section 15(1)(C) of the CHRA hinges on the respondents ability to find other ways of protecting the deferred compensation system. That system can not be protected without the requirement to pass the benefit on.

This is not a cake and eat it too ruling.

Clearly putting a post 60 pilot at the bottom of the heap, where they are once again deferring income to a later date, doesn't have solid ground either. What makes sence is removing them from the deferred compensation system, post age 60, and paying them their market value for the job being done. Whatever that job ends up being.

[DocAV8R]

Many have stated that Age 60 was in the contract and was freely negotiated and agreed upon when we started.

Can any one of you, who keep spouting this, please do a little research and report back to us, with references please, just exactly when this significant super bargain we all made was and what exactly we got for it on what date?

I do not recall a vote on this 35 years ago, 30 years ago, 25 years ago. Surely, if you all purport this to be the case you must have some proof. Please present it for consideration here. I have wracked my memory and do not recall any such deal, arrangement or any other democratically negotiated bargain that dictated that once accepted, I would be required to fall on a sword, so as to benefit those deserving, entitled, non-greedy souls who followed in my footsteps.
Please show me what I have missed somewhere along the line.... so that on my honour, I can do my final duty for the rest of you, when my predestined time comes. I beg of you- give me facts, not fiction.